Discovery will not be a one-way avenue. Most plaintiffs concede that a lot. However they push onerous to make defendants journey down a super-highway whereas site visitors from plaintiffs bumps alongside an unpaved nation lane. The reality is that it’s going to by no means be a good taking part in area in drug and system litigation, or any company litigation. Defendants are firms with tons of or 1000’s of staff, tens of millions of pages of emails/chats, and intensive digital info networks. Plaintiffs in the meantime usually possess only a few paperwork associated to their well being and medical remedy. These are within the possession of the healthcare suppliers. However it’s in these medical data that defendants usually discover info vital to the protection; proof corresponding to various causes or different danger components. So, discovery of plaintiffs’ medical histories is essential. A truth lately acknowledged in In re Cpap, 2023 Dist. LEXIS 227871 (W.D. Pa. Nov. 13, 2023).
Plaintiffs introduced medical monitoring claims alleging an elevated danger of 11 various kinds of cancers and 13 kinds of respiratory circumstances as a consequence of “publicity to hazardous toxins” from recalled medical units. Id. at *1. Defendants served interrogatories and doc requests in search of info and paperwork about plaintiffs’ medical histories and former exposures. Plaintiffs objected and argued they need to solely have to provide data from physicians who prescribed the medical units at subject and solely going again 5 years. Id. at *2. The court docket disagreed with plaintiffs.
Defendants’ discovery requests broke down into 5 classes: (i) these associated to the recalled units; (ii) these associated to plaintiffs’ basic medical historical past; (iii) these associated to different danger components; (iv) these associated to medical insurance; and (v) these associated to how the requested medical monitoring differs from customary monitoring. Id. at *3-4. Plaintiffs’ main argument for why discovery ought to be restricted to the primary class was that their claims had been based mostly on publicity to defendants’ merchandise solely, not on their medical historical past or preexisting publicity. However that might require utterly overlooking two important parts of plaintiffs’ claims.
Along with proving the publicity to a hazardous substance attributable to defendants’ negligence, medical monitoring claims require causation: “as a proximate results of the publicity, plaintiff has a considerably elevated danger of contracting a severe latent illness.” Id. at *6. Plaintiff additionally has to determine that the “prescribed monitoring regime is completely different from that usually really useful within the absence of publicity.” Id. The court docket discovered that it was a matter of “frequent sense” that these parts render not less than some discovery of plaintiffs’ medical histories related. For instance, a medical situation that pre-existed the publicity at subject could be related as to whether the publicity “considerably elevated” the chance of future illness. Likewise, if a plaintiff’s healthcare supplier beforehand suggested monitoring for one of many medical circumstances at subject, that might be related as to whether that monitoring is duplicative of what plaintiff needs defendants to pay for.
Plaintiffs had no case legislation to assist their argument that the court docket ought to enable discovery associated to the “prongs of the legal responsibility take a look at that target defendant’s conduct, and ignore the others, together with the causation aspect.” Id. at *8. That will be a one-way avenue. The opinion summarizes a number of key instances demonstrating simply the alternative; that some discovery of plaintiffs’ medical histories is acceptable. Id. at *9-13.
Whereas plaintiffs misplaced on their core place that the one related medical discovery was associated to their claimed publicity to the recalled units, the court docket didn’t grant defendants’ movement to compel in its entirety favoring a tiered method to medical discovery to guard delicate info. The court docket ordered that plaintiffs reply interrogatories about their medical histories typically and produce medical data associated to any remedy or testing for any of the pleaded cancers or respiratory circumstances. Plaintiffs even have to reply to interrogatories about their different danger components like tobacco use, household historical past, and occupational dangers. Id. at *14-16. For now, defendants’ broader requests for medical data are denied with out prejudice pending plaintiffs’ interrogatory responses. If the responses reveal doubtlessly related pre-existing circumstances or monitoring, defendants can subject revised, tailor-made doc requests. Requests for medical insurance data had been additionally denied as unlikely so as to add to the knowledge to be supplied within the medical data. Lastly, the court docket left it to plaintiffs to both present medical authorizations via which defendants can request data instantly from healthcare suppliers or to acquire the medical data themselves and produce them to defendants. In different phrases, if plaintiffs need to assume the burden, they’re entitled to the identical proper to assessment data for responsiveness and privilege earlier than producing them. Id. at *17.
Defendants didn’t get every thing they needed, however they not less than obtained the court docket to pave the lane in order that getting vital discovery will not be so bumpy a path.
